Siden v. United States

• Decision Date: 14 November 1925
• Docket Number: No. 6600.,6600.
• Parties: SIDEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.2d 241 (1925)

SIDEN v. UNITED STATES.

No. 6600.

Circuit Court of Appeals, Eighth Circuit.

November 14, 1925.

A. Feldman, of Duluth, Minn., for plaintiff in error.

Frederick S. Winston, Asst. U. S. Atty., of St. Paul, Minn.

Before SANBORN, LEWIS, and BOOTH, Circuit Judges.

WALTER H. SANBORN, Circuit Judge.

Under the first count of the information against him, Aaron Siden was convicted of the unlawful possession on December 1, 1922, at a clothing store at No. 705 West Superior street, in Duluth, Minn., of intoxicating liquor usable and used for beverage purposes, and under the second count of that information he was convicted of the unlawful sale on November 19, 1922, at the same place, of intoxicating liquor in violation of the National Prohibition Act, 41 Stat. 305, 308, tit. 2, § 3 (Comp. St. Ann. Supp. 1923, § 10138½aa). He was sentenced to pay a fine of $500 under the first count and to confinement in the jail at Stillwater, Minn., for the term of five months under the second count. His counsel claim that he was convicted under the first count upon incompetent evidence procured by an unlawful search of his clothing store and premises. He presented this matter upon a motion to quash the information, an abstract of the evidence at the trial, and a copy of the proceedings upon which the search warrant was founded.

On December 1, 1922, the defendant was, and for two years had been, conducting a clothing store at 705 West Superior street, Duluth, Minn., where he occupied two rooms, bought and sold new and second-hand clothing, employed a tailor, took orders for clothing, made and repaired clothes, manufactured a bedbug exterminator in his back room, bottled it, and sold it by the gallon and the bottle. His store occupied a front room, about 25 feet long and 22 feet wide, and a back room where the tailor worked, and the exterminator was handled. He picked up and purchased bottles, and kept them on hand in his back room for containers for the exterminator. Back of this rear room, and back of the building in which it was situated, a public concrete walk about four feet wide extended from Seventh avenue through to Mesaba avenue. His clothing store was surrounded by lodging houses, occupied by roomers, who had access to and used this paved passage, and frequently left empty bottles there, and in an area back of that passageway.

Between 6 and 7 in the evening of December 1, 1922, Charles Benson, a prohibition director and agent, and three other prohibition agents, armed with a search warrant, entered the defendant's clothing store and searched every part of the rooms he used and the territory in the rear of them. Mr. Benson testified that he found on the concrete walk under a plank a quart bottle; that he found a basket of empty bottles in the back room; that he smelled of these bottles, and they had the odor of moonshine whisky. The quart bottle was marked Exhibit D. Mr. Vitala, one of the prohibition agents, testified that he made a thorough search of the store and premises, and found on a shelf in the store a pint bottle containing about an ounce of moonshine whisky, marked Exhibit B, and three or four empty bottles; but this Exhibit B was the only one that had enough in it to pay any attention to. He further testified that he found a glass on the top of the refrigerator in the store, which was marked Exhibit C; that he made a thorough search of the premises and of the refrigerator, but found no other glass; and that the bottles had the odor of moonshine whisky. Mr. Benson also testified that at the time of the search he asked the defendant about the pint bottle that Vitala found, and that he said that he did not know anything about it; that he asked him about the other bottles, Exhibit D, and the glass, and he said that he did not know anything about the moonshine whisky; and that he also said that he just kept the glass there.

Upon the testimony which has been recited, Exhibits B, C, and D were used in evidence at the trial to convict the defendant. The latter testified in his defense that he did not know anything about the bottle marked Exhibit D; that it did not belong to him, and he never saw it before it was shown to him; that Vitala brought bottles from the back room, which he supposed he took from the empty bottles in the basket there and drained them into the bottle marked Exhibit B. Two other witnesses testified that they saw the man who searched the place drain these old empty bottles into the bottle marked Exhibit B. The substance of the evidence on which the defendant was convicted on the first count of this information has now been recited, and it leaves no doubt that the primary cause of his conviction was the introduction in evidence of the Exhibits B, C, and D, and the testimony concerning them, all of which was procured by the use of the search warrant with which the prohibition agent, Benson, had armed himself.

That warrant was based on the complaint of Mr. Benson, verified December 1, 1922, before a United States commissioner for the district of Minnesota.

"A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched." Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼c.

"The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist." Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼e.

The probable cause, indispensable to the lawful issue of a search warrant under these sections of the act of Congress, is the legal conclusion of the magistrate from the facts stated in the affidavits, depositions, or testimony. Without a statement in those affidavits, depositions, or testimony of facts sufficient to sustain such a conclusion, the search warrant may not lawfully issue. The statement of the sustaining facts showing probable cause is as indispensable to the lawful issue of a search warrant as the legal conclusion that such cause exists. When the facts on which the magistrate's conclusion of probable cause is based are not stated in the affidavits, depositions, or testimony on which that conclusion rests, the warrant cannot be...